9911796707
TMI Blog2017 (2) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... roup. The assessee is engaged in the business of builders and developers. A survey operation u/s 133A of the Act was conducted in the premises of Gangar Group. During the course of survey proceedings, incriminating documents reflecting details of cash transactions of various concerns, details of on-money receipts against sale of flats & shops in various projects executed by the assessee's group were found. At the conclusion of survey, the group agreed to offer additional income of Rs. 5.00 crores in the hands of various concerns of the group. 3. Subsequently the assessee's group including the assessee herein filed settlement application u/s 245C of the Act before the Settlement Commission. The assessee filed settlement application for AY 2005-06. The assessee also filed petitions u/s 245E of the Act with a request to the Settlement Commission to reopen the assessment of AY 2003-04 and 2006-07 also. The Settlement Commission admitted the application filed for AY 2005-06 and rejected the application filed u/s 245E of the Act for other years. For AY 2003-04, the assessee had offered additional income of Rs. 20,00,000/-. 4. Based on the information obtained from the Settlement applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Settlement Commission has taken note of on-money receipts and agreed with the contention of the assessee that there is no case for taxing entire on-money. Accordingly the Settlement Commission has estimated income out of the onmoney receipts, meaning thereby, the deduction for unaccounted expenditure, if any, has already been granted by the Settlement Commission. He submitted that income estimated by the Settlement Commission for Ay 2005-06 includes the expenditure incurred on the project till that year which would cover impugned payments also. The Ld A.R submitted that the Ld CIT(A), upon examination of ledger accounts, has accepted the explanations of the assessee that it was constrained to rotate the cash balance available with the group out of business expediency. However the payments have actually been made by way of cheques subsequently. Accordingly he submitted that the Ld CIT(A) was justified in deleting the addition of Rs. 41,95,100/- made by the AO. 8. On the contrary, the Ld D.R supported the order passed by the assessing officer. 9. Having heard rival submissions, we are of the view that there is no reason to interfere with the order passed by Ld CIT(A). We not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. We heard the parties and perused the record. We notice that the assessing officer has determined the on-money receipts as per the disclosure made by the assessee before the Settlement Commission. There is no dispute that the Settlement Commission has agreed with the contentions of the assessee that the entire amount of on-money receipts cannot be considered as income of the assessee. Accordingly the Settlement Commission has estimated the income from on-money receipts @ 17% in AY 2005-06. Since the assessing officer has estimated the on-money receipts as per the disclosure made before Settlement Commission, we are of the view that the Ld CIT(A) was justified in estimating the income from the on-money receipts @ 17% for this year also by following the order passed by the Settlement Commission. Accordingly we confirm the order passed by Ld CIT(A). Accordingly we reject the appeal filed by the revenue. 14. Since the assessee has filed the Cross objection for AY 2006-07 only to support the order passed by Ld CIT(A), the same does not require adjudication. 15. We shall now take up the appeal filed by the assessee for AY 2004-05 challenging the revision order passed by Ld CIT u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the order passed by Ld CIT, the assessee has filed this appeal before us. 18. The Ld A.R submitted that the revenue has not impounded any incriminating material concerning the assessment year 2004-05 during the course of survey operations. He submitted that the assessee has been following project completion method for offering income. He submitted that the assessee has not sold any of the flats during the year relevant to AY 2004-05. He submitted that the assessee has been receiving only booking advances only up to AY 2004-05 and the sale of flats have started from AY 2005-06 onwards only. Accordingly he submitted that the assessing officer did not have any material to show that the income of Rs. 24.00 lakhs has accrued to the assessee. The Ld A.R submitted that the assessing officer has made the addition of Rs. 24.00 lakhs only on the basis of application filed before the Settlement Commission. 19. The Ld A.R further submitted that the assessing officer has initiated the penalty proceedings without specifying the charge prescribed in sec. 274 of the Act. He further submitted that the Ld CIT has directed the AO to levy penalty for concealment of income. He submitted that the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions have to be satisfied. The Hon'ble Supreme Court has held in the case of Malabar Industrial Company (supra) that an order cannot be held to be prejudicial to the interests of the revenue, if the assessing officer has taken one of the possible views. 23. In the instant case, we notice that the assessee has furnished explanations before the assessing officer during the course of penalty proceedings three times, viz., on 22.12.2011, 24.12.2011 and 15.05.2012. It is not the case of Ld CIT that the assessing officer has dropped the penalty proceedings without considering the explanations of the assessee, meaning thereby, the AO was convinced with the submissions made by the assessee and accordingly dropped the penalty proceedings. It is pertinent to note that the Ld CIT did not discuss anything about the explanations furnished by the assessee before the AO and did not show that the said explanations are not acceptable in law. Under these set of facts, we are of the view that there is merit in the contentions of the assessee that the assessing officer has taken a possible view of the matter and hence the order passed by the AO dropping the penalty proceedings cannot be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
